Advanced Copyright Issues on the Internet - Fenwick & West LLP

However, the court was careful to note that where an operator is unable to verify a claimof infringement, there may be no contributory liability:Where a BBS operator cannot reasonably verify a claim of infringement, eitherbecause of a possible fair use defense, the lack of copyright notices on the copies,or the copyright holder’s failure to provide the necessary documentation to showthat there is a likely infringement, the operator’s lack of knowledge will be foundreasonable and there will be no liability for contributory infringement forallowing the continued distribution of the works on its system. 1153Nevertheless, the court clearly imposed a duty on the operator to actively attempt toverify a claim of infringement and to take appropriate action in response:Thus, it is fair, assuming Netcom is able to take simple measures to preventfurther damage to plaintiffs’ copyrighted works, to hold Netcom liable forcontributory infringement where Netcom has knowledge of Erlich’s infringingpostings yet continues to aid in the accomplishment of Erlich’s purpose ofpublicly distributing the postings. 1154(b) The MAPHIA CaseIn addition to the Netcom case, the court in the subsequent MAPHIA case 1155 (also out ofthe Northern District of California) held a BBS and its system operator liable for contributoryinfringement for both the uploading and the subsequent downloading of copies of Sega’s videogames by users where the system operator had knowledge that the infringing activity was goingon through the bulletin board, and had specifically solicited the uploading of the games fordownloading by users of the bulletin board. The court cited the Ninth Circuit’s decision inFonovisa, Inc. v. Cherry Auction, Inc. 1156 for the proposition that providing the site and facilitiesfor known infringing activity is sufficient to establish contributory liability. “In this case,Sherman provided the BBS as a central depository site for the unauthorized copies of games, andallowed subsequent distribution of the games by user downloads. He provided the facilities forcopying the games by providing, monitoring, and operating the BBS software, hardware, andphone lines necessary for the users to upload and download games.” 1157 This suggests that mereoperation of a BBS, at least if the operator knows that infringing activity is taking place, may besufficient for contributory liability.However, the court went on to hold that Sherman would have been liable as acontributory infringer even under a higher standard requiring more direct participation in theinfringement that the court believed the Netcom decision established:1153 Id.1154 Id. at 1375.1155 Sega Enterprises Ltd. v. MAPHIA, 948 F. Supp. 923 (N.D. Cal. 1996).1156 76 F.3d 259 (9th Cir. 1996).1157 MAPHIA, 948 F. Supp. at 933.- 265 -